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'Don't ask, don't tell' federal court case set to start

By Ed O'Keefe

Eye Opener

As the Pentagon continues studying the impact of repealing its "don't ask, don't tell" policy, a federal court case starting Tuesday in California will consider whether the policy banning gays and lesbians from openly serving in uniform is constitutional.

A six-year legal fight by the Log Cabin Republicans culminates today in Riverside, Calif., where the group's lawyers will argue that the the gay ban violates due process and free speech protections. The group has about 19,000 members and supports "fairness, freedom and equality for gay and lesbian Americans," according to its Web site.

"We're trying to have the whole statute thrown out," said lead attorney Dan Woods. Over the course of the two week trial, Woods plans to call several expert witnesses and at least five former service members, who will tell the court how they were discharged under the policy for reasons unrelated to their performance. At least one heterosexual service member also is expected to testify about how working with gay men made no difference in his military service, Woods said.

The judge in the case decided last week that the case could proceed despite government objections. Justice Department lawyers will argue that LCR has failed to identify any of its members personally harmed by the gay ban and that the group's claims of unconstitutionality fail under court precedent, according to government court briefs.

But the case once again puts government lawyers in the awkward position of defending a policy impeding gay rights that the Obama administration hopes to one day end.

"The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged," said spokeswoman Tracy Schmaler. "The president believes and has repeatedly affirmed that 'don't ask, don't tell' is a bad policy that harms our national security and undermines our military effectiveness, because it requires the discharge of brave Americans who wish to serve this country honorably. The president and his administration are working with the military leadership and Congress to repeal this law."

Tuesday's trial comes only days after a Boston federal judge struck down a major part of the Defense of Marriage Act as it applies to Massachusetts. Justice Department lawyers are expected to appeal the ruling, despite President Obama's stated opposition to the 1996 law.

The Pentagon last week defended its ongoing study of "don't ask, don't tell" as copies of a questionnaire sent to about 400,000 active duty and reserve troops leaked to the media. Defense Secretary Robert Gates has assured gay and lesbian troops that the survey will protect their privacy, and says the study is necessary to help the Pentagon complete its review, which is due to Obama by Dec. 1.

Leave your thoughts in the comments section below

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By Ed O'Keefe  | July 13, 2010; 6:00 AM ET
Categories:  Eye Opener, Military  
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As a retired, Gulf War vet, and a somewhat flaming heterosexual, I can state with some authority that the "Don't Ask, Don't Tell" policy, as well as the policy against having known homosexuals serving in the military are wrong, and un-Constitutional. Furthermore, as I have stated repeatedly over the years, the position of the President, the Secretary of Defense, and the Joint Chiefs against integration of homosexuals, and the claim of a need for more study, is based on their own homophobia, stonewalling, and a refusal to accept already existing, evidence-based studies, as well as the successes of racial and sexual integration. In short, rather than working to correct that deficiency, they are engaging in last ditch efforts to maintain the gay ban.

The military already has working rules and programs against sexual harassement. The military already has working rules and programs against sexual discrimination. The military already has working rules and programs against intimate relationships of any kind between members of the same chain of command. The military already has rules and programs against engaging in unauthorized behavior on duty.

A female sergeant and a male corporal are no more going to engage in intercourse in a foxhole in the middle of a firefight than two lesbians or two gay guys.

What you will find is that the military is about 100 years behind the civilian world in the protection and prosecution of their members from sexual assault and harrassment. Women are afraid to report discrimination, harassment, and rape; and there is no reason to suspect that that situation would be any different for homosexuals.

Posted by: mhoust | July 13, 2010 10:23 AM | Report abuse

While I don't have any problem with the current policy of "Don't Ask, Don't Tell" it is very important to make a clear distinction between gays serving openly and those serving effectively under the current policy. Let's be real clear here - these two things are not the same. Just because gays have served and are serving well under "Don't Ask, Don't Tell" doesn't mean that the same will be true should gays be allowed to serve openly.

There are numerous morale and unit issues likely to develop from allowing gays to openly serve. The one that gets a lot of attention is the close quarters, showers, etc. To put it simply, what would happen if I as a commander told my female soldiers to shower with or sleep in the same room as my men? Most likely harrassment charges, IG complaints, etc. So, why should I be put in a position of telling my non-gay soldiers to shower with or sleep in the same room as an openly gay soldier? Isn't this the same thing? It certainly is likely to be from the perspective of many of my non-gay soldiers. These are very real issues that commanders will be faced with should the policy change.

How about when openly gay soldiers are off-duty and start wearing clothes, jewlery, etc expressing their orientation that would normally not be considered appropriate but now they are able to openly do? Do we recognize their partners as we would a spouse? What if my soldiers are uncomfortable around two male Soldiers or Marines kissing in uniform or dancing at a military ball? Are the heterosexual soldiers just unelightened? Is this really what we want? Does this improve my effectiveness as a unit?

The decision of whether or not to allow gays to openly serve should focus on one thing and one thing only - will it improve unit cohesiveness and effectiveness? If it doesn't, then very simply it is the wrong thing to do. Secretary Gates is correct in taking a thoughtful measured approach to this very complicated issue.

Finally, keep in mind that the U.S. military is not the Canadian or Dutch military nor do I think we want it to be.

Posted by: dbmn1 | July 13, 2010 11:41 AM | Report abuse

our country is at war and we continue to pursue this senseless idea that homosexuals are a threat to our military.the lunatic enemy is comforted by this diversion. obozo and gang on hill ,along with all the whiners looking for a few more votes while our people are suffering and dying. incompetent of self serving A.......

Posted by: pofinpa | July 13, 2010 11:42 AM | Report abuse

Republicans going to court on this? This makes no sense! None whatsoever.

For, 1) the Republicans are "Rule of Law" people. If the Government wants it, it must be okay.

But more importantly 2) There are no homosexuals within Republicans! So why worry!

Posted by: kishorgala | July 13, 2010 11:55 AM | Report abuse

Gays can serve as long as they keep to themselves and not try to interact sexually with straight people - that's how people can get hurt.

Posted by: Sparky15 | July 13, 2010 5:21 PM | Report abuse

Homosexuality is a filthy manner of lifestyle on the par of incest or pedophilia or hideous beastiality. It has no place in the military. It used to be that the purpose of the military was to win wars, but nowadays it's the advancement of left wing political agendas. Make no mistake about it, God will destroy any nation that dabbles in this moral filth. He doesn't have to send famine, earthquakes, or tornadoes ... He just steps aside and lets you destroy yourself with your own evil.

Posted by: penniless_taxpayer | July 14, 2010 11:32 AM | Report abuse

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